MONTPELIER – In an extraordinary and extremely controversial decision, the Vermont Supreme Court Friday tossed out the felony domestic assault conviction and the habitual offender status of a Bennington man because the case took too long.

It may be the first time in Vermont a conviction has been overturned and an inmate potentially freed for that reason, lawyers said.

In their 3-2 decision, the three justices who vacated the convictions of Michael Brillon said they are concerned the judicial system may be underfunded – and the Legislature should consider acting before those who committed more serious crimes like murder are released as well.

"In this appeal we take the extraordinary step of vacating the convictions and dismissing the charges against a defendant because he was not prosecuted within a time frame that satisfied his constitutional right to a speedy trial," the justices wrote. "To the extent that what happened in this case is not an aberration but rather the result of a lack of funding to support the criminal justice system in this state, we encourage the Legislature to examine any unfulfilled needs and address the problem."

However the two justices who disagreed with the majority – including Chief Justice Paul Reiber – disagreed vigorously with their colleagues.

"Today the majority frees a convicted woman beater and habitual offender, not because of any infirmity in the evidence or unfair prejudice in the trial by which a jury found him guilty, but because the defendant delayed the proceedings for almost twenty-two months," the dissenting justices wrote.

It is unclear if the case will be reargued before the justices, but since the highest court in the state threw out the 12-to-20 year sentence, Brillon might be freed almost immediately if the matter is not brought before the court. The governor is asking the Attorney General's office to file a motion for re-argument.

The Attorney General's office, which argued for the state before the Vermont Supreme Court, declined to comment on the case.

Brillon's criminal history and violation of a previous condition of release resulted in the assault charge against him being increased to a felony and to his being charged as a habitual offender – which could have carried a life sentence – according to court records.

Brillon, 45, has been convicted of 14 prior offenses, including some felonies, according to court records. He has been convicted of obstructing justice, concealing stolen property and, when he was 31, sexual assault of a minor, according to those records. The dissenting justices referred to his "chronic criminality" and "public ignominy" in their decision.

Brillon's brother, James Brillon, was murdered in 1987 in Ludlow.

The Vermont Supreme Court ruling quickly became the talk of the Statehouse, where both lawmakers and officials in the administration of Gov. James Douglas pointed out that the funding for virtually all pieces of the criminal justice system has been increased since 2001 when the case began. Funding of the judiciary, public safety, the defender general's office, the sheriffs, the state's attorneys and the attorney general's office have collectively been increased by 50 percent over the last six years, or more than 8 percent a year, administration officials pointed out.

The budget for the defender general's office has increased from $7 million in 2001 to a recommended $11 million for next year.

Lawmakers added that they have consistently increased the appropriations requested by the administration in those areas.

"I don't think I have ever seen the Supreme Court taking on the Legislature in such a manner, with what I see as a threat," said Sen. Richard Sears, D-Bennington.

Sears was referring to a section of the majority opinion that seemed to indicate that that the Brillon case might be only the first such decision of its kind. The justices wrote, in part "the dismissal of the charges in this case could conceivably arise again, perhaps in a case involving a murder or another serious felony."

Sears, the chairman of the Senate Judiciary Committee as well as a member of the Appropriations Committee – and who has known Brillon for three decades – is familiar with the case and the issue of judicial funding on several levels.

Secretary of Administration Michael Smith pointed out that the case began before Douglas took office. He agreed with Sears in his dismay at the court's decision.

"Releasing someone convicted of domestic assault and threatening to release murderers to influence the budget process is grossly irresponsible," he said.

In their decision, however, the three justices in the majority said it simply took the court system too long to handle the case, a violation of Brillon's rights.

"Defendants remained incarcerated during the nearly three years that passed before he was finally brought to trial," they wrote. "We cannot be sure if this case represents an aberration or a growing crisis in the provision of defender general services in Vermont. If it is the result of inadequate resources given to the defender general's office, it would behoove the Legislature to address the problem before we are confronted anew with the dilemma of dismissing charges and prematurely releasing potentially dangerous individuals into the community," they wrote later in the decision.

The three justices are not alone. Funding of defense work for the poor has been a problem in Vermont for many years, especially during the years when former Gov. Howard Dean was in office, said Michael Mello, professor at Vermont Law School.

"We do poorhouse justice here in Vermont That has been a lurking crisis here really before Howard Dean was governor, but especially during his tenure," Mello said. "He thought it was a waste of money, basically, because Vermont law enforcement would not arrest people unless they are guilty, Vermont prosecutors would not prosecute someone unless they are guilty."

It is not clear if the situation is better now under Douglas, he said.

"Dean did so much damage it is kind of hard to tell," Mello said.

It is a misconception that lack of money for public defenders is a problem only for poor or southern states, Mello said.

"Vermont has in my view the worst system for delivering legal aid for poor people," he said. "It is held together by the skill and the work and the commitment of lawyers. Defense lawyers in Vermont do more with less than lawyers anywhere else I have lived."

Defender General Matthew Valerio, who started his job in the fall of 2001, said that the delays in the Brillon case were in many ways a function of the times, when state budgets had been trimmed due to economic trouble, there was a hiring freeze in state government and a dramatic increase in caseload.

"This particular case was a confluence of fiscal events and structural circumstances that occurred right after Sept. 11 and right after Gov. Dean appointed me," he said. "All of which resulted over an 18-month period in a delay in cases and a backlog of cases in the criminal justice system."

"I don't think it is a growing crisis. We have persistent concerns the Douglas administration has been pretty receptive to addressing, as has the Legislature," Valerio said.

One thing that makes the decision particularly interesting to court watchers is the way the two groups of justices talk about each other's decisions.

The dissenting justices wrote that much of the delay was Brillon's own fault, a view the majority came close to ridiculing in its own opinion.

"Apparently, the dissent views the trial court, the state's attorney's office, and the defender general's office as passive players," the majority wrote.